Religious rights law being tested in ways not foreseen

November 19, 2013 - Patricia Zapor

People hold signs during a 2012 rally outside the Department of Health and Human Services in Washington against the government mandate that would require nearly all employers to cover contraceptives and sterilization in their health plans. CNS/BOB ROLLER

The Supreme Court Nov. 26 will consider whether to accept one or more of four cases it's being asked to review that deal with faith-based objections to provisions of the Affordable Care Act.

Part of what's at stake is a couple of centuries' worth of history for the Free Exercise clause of the First Amendment, as well as the durability and reach of the Religious Freedom Restoration Act.

RFRA, as the 1993 law is known, was the result of concerted lobbying by an interfaith coalition allied to repair what was seen as damage to religious rights from a 1990 Supreme Court ruling.

As noted by panelists at a Nov. 7 conference sponsored by the Freedom Forum, in the 20 years since RFRA passed, the debate over religious liberty has shifted in ways its advocates never anticipated.

Indeed, some of those who worked side-by-side to pass RFRA now are on opposite sides of those lawsuits over the Affordable Care Act.

In short, they disagree about what's more at risk: the right of people of faith to be free from laws that clash with their religious beliefs, or, the right of people to be protected from laws that affect them being shaped by religious beliefs they don't hold.

In a session on the Free Exercise clause at the conference sponsored by the Freedom Forum, Doug Laycock, a University of Virginia First Amendment professor, said in some ways the state of religious rights has improved since RFRA became law, but "in some ways it's worse."

RFRA was written following the Supreme Court's 1990 ruling in Employment Division v. Smith that said a Native American tribe in Oregon had no right to use the illegal drug peyote in a religious ceremony.

The court said judges only had to determine that a law applying to all citizens reasonably advances a legitimate government policy. Previously, the standard for reviewing a religious claim required finding a "compelling'' interest in restricting religious freedom. RFRA was written to restore the higher "compelling interest" standard.

The law was subsequently ruled by the Supreme Court to apply only to the federal government, not states or municipalities.

Twenty years ago, those involved in crafting RFRA worried about its possible uses — to get around laws that restrict abortion, that require equal employment for women or racial minorities, or that prohibit employing children, for example.

Three of the suits on the court's Nov. 26 conference calendar question whether for-profit companies may be required by the federal government to pay for birth control in employee health insurance in spite of the owners' moral objections. A fourth case involves the Christian-run Liberty University and its employees.

Laycock said he's not sure how he feels about whether the companies suing over what's known as the Health and Human Services mandate should be found to have religious rights. He said it helps the argument of businesses such as Hobby Lobby, the craft store chain in one of the suits, that they are family run, closely held companies with a history of operating under faith-led principles.

On the other hand, Laycock said, "the government has gone to remarkable lengths to protect religious institutions" from having to comply with provisions of the health law that such institutions say are morally objectionable.

The U.S. Conference of Catholic Bishops, and others, say the exemptions don't go far enough in covering a range of faith-based employers.

Laycock said the administration has "done far more than they get credit for."

In another panel, Dan Mach, director of the Program on Freedom of Religion and Belief at the American Civil Liberties Union, said the ACLU — one of the advocates for RFRA in 1993 — backs the government in the HHS cases because that's also a matter of some people's religious freedom.

"The ACLU cares about many rights, including religious freedom," Mach said. "And while that's a crucial right, it is not absolute. We believe it should not be used to infringe on the rights of others." In the HHS lawsuits, he added, the "others" are the employees of the companies that are suing.

Lori Windham, senior counsel at the Becket Fund, which represents many of the organizations suing the federal government over the mandate, said in the same panel that the government is on shaky ground in arguing that there is a compelling reason to disregard religious beliefs in requiring employers to cover contraceptives.

RFRA refers to restoring the compelling interest test for when the government may "substantially burden a person's exercise of religion, even if the burden results from a rule of general applicability."

Windham said various exemptions from the health law — such as for plans that are grandfathered in — diminish the government's claim that there is a "compelling interest," to provide contraceptive insurance.

"There are 109 million employees on grandfathered plans that are not required to comply" with the contraceptives provisions, she said, though they still have to comply with other parts of the law, such as to cover pre-existing conditions.

Laycock cautioned that "the whole debate on sexual morality and religious rights is turning the country against religious liberty."

Just as the sexual revolution of the 1960s and 1970s opened the door to more common acceptance of abortion and divorce, a comparable cultural shift is now happening over same-sex marriage, Laycock said. "One side views it as a grave evil and the other side views it as a fundamental civil right."

He said both sides should be willing to negotiate over how civil laws and religious beliefs can accommodate each other.

"Polarization is a real problem" he said. Unlike the relatively collegial negotiations 20 years ago on how RFRA should be written, Laycock said, "there's a tendency on both sides to resist" any negotiation until all legal challenges have run their course.

"Liberty on our side but none for them is a very bad trend," he observed.

Kim Colby, senior counsel for the Christian Legal Society's Center for Law and Religious Freedom, said instead of the dug-in partisans Laycock portrayed, "we're seeing a country that has turned its back on pluralism. It's no longer enough to agree to disagree."

Now, she said, everyone is supposed to accept the sexual morality standards of a changing society, which she attributed to "tone deafness" on the part of those who want same-sex marriage legalized, for example.

Voices

Archbishop José H. Gomez

This morning, Pope Francis named Bishop Robert McElroy, Auxiliary of San Francisco, to be the new Bishop of San Diego, which is one of the six dioceses that make up the Ecclesiastical Province of Los Angeles.